Country Policy and Information Note - India: Sexual orientation and gender identity and expression - v3.0 (October 2018)
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Country Policy and Information Note India: Sexual orientation and gender identity and expression Version 3.0 October 2018
Preface
Purpose
This note provides country of origin information (COI) and analysis of COI for use by
Home Office decision makers handling particular types of protection and human
rights claims (as set out in the basis of claim section). It is not intended to be an
exhaustive survey of a particular subject or theme.
It is split into two main sections: (1) analysis and assessment of COI and other
evidence; and (2) COI. These are explained in more detail below.
Assessment
This section analyses the evidence relevant to this note – i.e. the COI section;
refugee/human rights laws and policies; and applicable caselaw – by describing this
and its inter-relationships, and provides an assessment on whether, in general:
• A person is reasonably likely to face a real risk of persecution or serious harm
• A person is able to obtain protection from the state (or quasi state bodies)
• A person is reasonably able to relocate within a country or territory
• Claims are likely to justify granting asylum, humanitarian protection or other form
of leave, and
• If a claim is refused, it is likely or unlikely to be certifiable as ‘clearly unfounded’
under section 94 of the Nationality, Immigration and Asylum Act 2002.
Decision makers must, however, still consider all claims on an individual basis,
taking into account each case’s specific facts.
Country of origin information
The country information in this note has been carefully selected in accordance with
the general principles of COI research as set out in the Common EU [European
Union] Guidelines for Processing Country of Origin Information (COI), dated April
2008, and the Austrian Centre for Country of Origin and Asylum Research and
Documentation’s (ACCORD), Researching Country Origin Information – Training
Manual, 2013. Namely, taking into account the COI’s relevance, reliability, accuracy,
balance, currency, transparency and traceability.
The structure and content of the country information section follows a terms of
reference which sets out the general and specific topics relevant to this note.
All information included in the note was published or made publicly available on or
before the ‘cut-off’ date(s) in the country information section. Any event taking place
or report/article published after these date(s) is not included.
All information is publicly accessible or can be made publicly available, and is from
generally reliable sources. Sources and the information they provide are carefully
considered before inclusion.
Page 2 of 35Factors relevant to the assessment of the reliability of sources and information
include:
• the motivation, purpose, knowledge and experience of the source
• how the information was obtained, including specific methodologies used
• the currency and detail of information, and
• whether the COI is consistent with and/or corroborated by other sources.
Multiple sourcing is used to ensure that the information is accurate, balanced and
corroborated, so that a comprehensive and up-to-date picture at the time of
publication is provided of the issues relevant to this note.
Information is compared and contrasted, whenever possible, to provide a range of
views and opinions. The inclusion of a source, however, is not an endorsement of it
or any view(s) expressed.
Each piece of information is referenced in a brief footnote; full details of all sources
cited and consulted in compiling the note are listed alphabetically in the bibliography.
Feedback
Our goal is to continuously improve our material. Therefore, if you would like to
comment on this note, please email the Country Policy and Information Team.
Independent Advisory Group on Country Information
The Independent Advisory Group on Country Information (IAGCI) was set up in
March 2009 by the Independent Chief Inspector of Borders and Immigration to
support him in reviewing the efficiency, effectiveness and consistency of approach of
COI produced by the Home Office.
The IAGCI welcomes feedback on the Home Office’s COI material. It is not the
function of the IAGCI to endorse any Home Office material, procedures or policy.
The IAGCI may be contacted at:
Independent Advisory Group on Country Information
Independent Chief Inspector of Borders and Immigration
5th Floor
Globe House
89 Eccleston Square
London, SW1V 1PN
Email: chiefinspector@icibi.gov.uk
Information about the IAGCI’s work and a list of the documents which have been
reviewed by the IAGCI can be found on the Independent Chief Inspector‘s pages of
the gov.uk website.
Page 3 of 35Contents
Assessment .............................................................................................................. 6
1. Introduction ...................................................................................................... 6
1.1 Basis of claim ........................................................................................... 6
1.2 Points to note ........................................................................................... 6
2. Consideration of issues ................................................................................... 6
2.1 Credibility.................................................................................................. 6
2.2 Exclusion .................................................................................................. 6
2.3 Convention reason ................................................................................... 6
2.4 Risk .......................................................................................................... 7
2.5 Protection ............................................................................................... 10
2.6 Internal relocation ................................................................................... 10
2.7 Certification ............................................................................................ 12
Country information ............................................................................................... 13
3. Legal rights .................................................................................................... 13
3.1 General................................................................................................... 13
3.2 Gay and bisexual men: Section 377 of the Indian Penal Code (IPC) ..... 13
3.3 Enforcement of Section 377 IPC prior to September 2018 ruling ........... 14
3.4 Lesbian and bisexual women ................................................................. 16
3.5 Transgender persons ............................................................................. 16
4. State treatment and attitudes ......................................................................... 17
4.1 Responses to court judgments on Section 377 IPC ............................... 17
4.2 Gay pride events .................................................................................... 18
4.3 Positive steps toward transgender/hijra/aravani groups ......................... 18
4.4 Police conduct ........................................................................................ 18
4.5 Remedies for police misconduct ............................................................. 21
5. Societal treatment and attitudes .................................................................... 22
5.1 Gay men and lesbians ............................................................................ 22
5.2 Transgender persons ............................................................................. 25
5.3 Hijras (Aravanis) ..................................................................................... 25
6. Other forms of discrimination ......................................................................... 26
6.1 Access to healthcare .............................................................................. 26
6.2 Rented accommodation ......................................................................... 26
6.3 Workplace harassment ........................................................................... 27
6.4 Education ............................................................................................... 27
7. Freedom of movement................................................................................... 27
Page 4 of 358. NGOs and support networks ......................................................................... 28
Annex A................................................................................................................... 29
Letter from the British High Commission (New Delhi), 4 September 2013 ........... 29
Bibliography ........................................................................................................... 31
Version control ....................................................................................................... 35
Page 5 of 35Assessment
Updated: 21 September 2018
1. Introduction
1.1 Basis of claim
1.1.1 Fear of persecution or serious harm by the state and/or non-state actors due
to the person’s actual or perceived sexual orientation and/or gender identity.
1.2 Points to note
1.2.1 This note provides policy guidance on the general situation of gay men,
lesbians, bisexuals and transgender persons (including hijras). They are
referred collectively as ‘LGBT persons’, though the experiences of each
group may differ.
1.2.2 The experience of Hijras, who have had a distinct position in South Asian
culture for thousands of years and are regarded as a third gender in India,
may be different from other LGBT groups.
1.2.3 Where a claim is refused, it must be considered for certification under
section 94 of the Nationality, Immigration and Asylum Act 2002 as India is
listed as a designated state (see Certification).
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2. Consideration of issues
2.1 Credibility
2.1.1 For information on assessing credibility, see the Asylum Instruction on
Assessing Credibility and Refugee Status.
2.1.2 Decision makers must also check if there has been a previous application for
a UK visa or another form of leave. Asylum applications matched to visas
should be investigated prior to the asylum interview (see the Asylum
Instruction on Visa Matches, Asylum Claims from UK Visa Applicants).
2.1.3 Decision makers should also consider the need to conduct language
analysis testing (see the Asylum Instruction on Language Analysis).
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2.2 Exclusion
2.2.1 Decision makers must consider whether one (or more) of the exclusion
clauses is applicable. Each case must be considered on its individual facts
and merits.
2.2.2 For further guidance on the exclusion clauses and restricted leave, see the
Asylum Instruction on Exclusion: Article 1F of the Refugee Convention and
the Asylum Instruction on Restricted Leave.
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2.3 Convention reason
2.3.1 LGBT persons form a particular social group (PSG) in India within the
meaning of the Refugee Convention because they share a common
Page 6 of 35characteristic that cannot be changed and have a distinct identity which is
perceived as being different by the surrounding society.
2.3.2 Although LGBT persons form a PSG, this does not mean that establishing
such membership will be sufficient to be recognised as a refugee. The
question to be addressed is whether the particular person will face a real risk
of persecution on account of their membership of such a group.
2.3.3 For further guidance on particular social groups, see the Asylum Instruction
on Assessing Credibility and Refugee Status.
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2.4 Risk
2.4.1 Decision makers must establish whether or not an LGBT person, if returned
to their country of origin, will live freely and openly as such. This involves a
wide spectrum of conduct which goes beyond merely attracting partners and
maintaining relationships with them. Even if LGBT persons who lived openly
would not be generally be at risk, decision makers must consider whether
there are reasons why the particular person would be at risk.
2.4.2 If it is found that the person will conceal aspects of his or her sexual
orientation/identity if returned, decision makers must consider why.
2.4.3 If this will simply be in response to social pressures, or for cultural or
religious reasons of their own choosing, then they may not have a well-
founded fear of persecution.
2.4.4 But if a material reason why the person will resort to concealment is that they
genuinely fear that they will be persecuted, it will be necessary to consider
whether that fear is well-founded.
2.4.5 Decision makers should also consider if there are individual- or country-
specific factors that could put the person at risk, even if they choose to live
discreetly because of social or religious pressures, and/or whether the steps
taken by them would be sufficient to avoid the risk of persecution. Some
people will not be able to avoid being known or perceived to be LGBT, whilst
others will take some steps to conceal but would still be at risk.
2.4.6 For further guidance, see the Asylum Instruction on Sexual Identity Issues in
the Asylum Claim.
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a. State treatment of gay and bisexual men
2.4.5 In the Country Guidance case MD (same-sex oriented males: risk) India CG
[2014] UKUT 65 (IAC) (heard on 24 February 2012 and 10 October 2013
and promulgated 12 February 2014), the Upper Tribunal (UT) held that
‘Section 377 of the Indian Penal Code 1860 criminalises same-sex sexual
activity’, however, ‘Prosecutions for consensual sexual acts between males
under section 377 IPC are, and have always been, extremely rare.’ (para
174b).
2.4.6 There have been reports of police officers using Section 377 IPC as a
pretext to harass and intimidate LGBT persons in public spaces (see State
treatment and attitudes).
Page 7 of 352.4.7 Several hundred people in various states have been arrested under Section
377 IPC, the majority of them for crimes against children. No evidence has
been found that any of those arrested have been tried and convicted in
cases involving consensual sexual activity between adults (see Enforcement
of Section 377 IPC prior to September 2018 ruling).
2.4.8 Subsequent to MD, India’s Supreme Court ruled, on 6 September 2018, that
consensual sexual acts between adults, conducted in private, are no longer
an offence under Section 377 IPC (see Gay and bisexual men: Section 377
of the Indian Penal Code (IPC)).
2.4.9 In MD the UT held that:
‘Some persons who are, or are perceived to be, same-sex oriented males
suffer ill treatment, extortion, harassment and discrimination from the
police...; however, the prevalence of such incidents is not such, even when
taken cumulatively, that there can be said in general to be a real risk of an
openly same-sex oriented male suffering treatment which is persecutory or
which would otherwise reach the threshold required for protection under the
Refugee Convention, Article 15(b) of the Qualification Directive, or Article 3
ECHR.’ (paragraph 174c).
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b. State treatment of lesbians and bisexual women
2.4.10 The Upper Tribunal’s determination in the Country Guidance case AR and
NH (lesbians) India CG [2016] UKUT 00066 (IAC) (heard on 23 June 2015
and promulgated 1 February 2016) found that ‘... both parties accept that
there have been no prosecutions of lesbians under section 377 at all, and
that in practice, section 377 is perceived in Indian law as inapplicable to
lesbians.’ (Paragraph 64). India’s Supreme Court ruled, on 6 September
2018, that consensual sexual acts between adults, conducted in private, are
no longer an offence under Section 377 IPC. There are no other laws in
India which criminalise lesbian sexual activity. Women are not, therefore at
risk of prosecution for same-sex sexual activity (see Legal rights: Lesbian
and bisexual women).
2.4.11 AR and NH held that ‘the evidence does not support a finding of endemic
police complicity in harassment or other ill-treatment of lesbian couples or
individuals.’ (Paragraph 76)
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c. State treatment of transgender persons
2.4.12 In an April 2014 judgment, the Indian Supreme Court directed the central
Government of India and all state governments to legally recognise
transgender persons (including hijras) as a third gender and to implement
specific measures to safeguard their Constitutional rights. These included
the provision of educational and public employment opportunities, accessible
medical care, the extension of social welfare schemes and, notably, a
change in the attitudes of public officials towards transgender persons and
the need for officials to influence public opinion positively. The Court directed
that state-issued identity papers – including birth certificates, passports,
electoral records and other documents – reflect the person’s self-defined
Page 8 of 35gender identity (See Legal rights: Transgender persons and Attitudes of, and
treatment by, state authorities).
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d. State treatment conclusion
2.4.13 In general, state treatment of LGBT persons, even when taken cumulatively,
is not sufficiently serious by its nature and repetition as to amount to
persecution or serious harm. Decision makers must consider each case on
its facts. The onus will be on the person to demonstrate why, in their
particular circumstances, they would be at real risk from the authorities.
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e. Societal treatment of gay men
2.4.14 In MD, the UT held that ‘Same-sex orientation is seen socially, and within the
close familial context, as being unacceptable in India. Circumstances for
same-sex oriented males are improving, but progress is slow’ (para 174d).
2.4.15 The UT also found that some persons who are, or are perceived to be,
same-sex oriented males, suffer ill treatment, extortion, harassment and
discrimination from the general populace, but that the prevalence of such
incidents is not such that there is, in general, a real risk of persecution or
serious harm for an openly same-sex oriented male (paragraph 174c).
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f. Societal treatment of lesbians
2.4.16 In the case of AR and NH the UT found:
‘A risk of persecution or serious harm for a lesbian woman in India, where it
exists, arises from her family members, and the extent of such risk, and
whether it extends beyond the home area, is a question of fact in each case.
(paragraph 78(8))
‘The risk of persecution or serious harm is higher for uneducated lower class
lesbian women in rural areas, who remain under the control of their family
members and may not be permitted to leave the home to continue meeting
their lesbian partners.’ (paragraph 78(9))
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g. Societal treatment of transgender persons
2.4.17 Hijras (Aravanis) form the most prominent transgender community in India.
Hijras have always suffered stigmatisation, abuse and derision. Societal
attitudes have gradually improved in recent years, but incidents of violence
against hijras continue to be reported (See Societal treatment and attitudes:
Transgender persons).
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h. Societal treatment conclusion
2.4.18 In general, the societal treatment of LGBT people in India, even when taken
cumulatively, is not sufficiently serious by its nature and repetition as to
amount to persecution or serious harm. Decision makers must consider each
Page 9 of 35case on its facts. The onus will be on the person to demonstrate why, in their
particular circumstances, they would be at real risk from non-state actors.
2.4.19 For further guidance on assessing risk, see the Asylum Instruction on
Assessing Credibility and Refugee Status and, in regard to women, Gender
issues in the asylum claim.
Back to Contents
2.5 Protection
2.5.1 If the person’s fear is of ill treatment/persecution at the hands of the state,
they will not be able to avail themselves to the protection of the authorities.
2.5.2 Where the person’s fear is persecution and/or serious harm from non-state
actors, including rogue state agents, decision makers must assess whether
the state can provide effective protection.
2.5.3 Police conduct towards LGBT people varies from one Indian state to
another. In several states, the police have received relevant additional
education and sensitivity training in LGBT issues (see Police conduct).
2.5.4 Whilst there have been some reports of police intimidating, harassing and
extorting LGBT persons, there are avenues of redress in such
circumstances. There is no evidence that, in general, the police would fail to
properly investigate a serious incident of violence, or another serious crime,
on the basis that the person is LGBT (see Remedies for police misconduct
and Police conduct).
2.5.5 There are remedies for victims of police misconduct (see Remedies for
police misconduct).
2.5.6 Various non-governmental organisations advocate for LGBT rights and may
also be able to assist the person to avail themselves of the protection of the
state (see Societal treatment and attitudes).
2.5.7 In general, the state appears willing and able to offer effective protection and
the person will be able to avail themselves of the protection of the
authorities. A person’s reluctance to seek protection does not mean that
effective protection is not available. It should be noted that protection does
not need to eliminate the risk of discrimination and violence. Each case must
be considered on its facts.
2.5.8 For general information and analysis on actors of protection, see the Country
Policy and Information Note (CPIN) on India: Background information,
including actors of protection, and internal relocation and, in the case of
women, the CPIN on India: women fearing gender based harm/violence.
2.5.9 For further guidance on assessing the availability of state protection, see the
Asylum Instruction on Assessing Credibility and Refugee Status and, in
regard to women, Gender issues in the asylum claim.
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2.6 Internal relocation
2.6.1 Where the person's fear is of persecution and/or serious harm by the state,
they will not be able to relocate to escape that risk.
Page 10 of 352.6.2 Where the person's fear is of ill treatment/persecution at the hands of non-
state actors, including rogue state agents, in general they will be able to
relocate to escape that risk.
2.6.3 The UT found in MD (same-sex oriented males: risk) India that:
‘It would not, in general, be unreasonable or unduly harsh for an open same-
sex oriented male (or a person who is perceived to be such), who is able to
demonstrate a real risk in his home area because of his particular
circumstances, to relocate internally to a major city within India.’ (para 174e)
‘India has a large, robust and accessible LGBTI activist and support network,
mainly to be found in the large cities.’ (paragraph 174f)
2.6.4 In AR and NH the UT found that:
‘Where family members are hostile to a lesbian woman’s sexuality, they may
reject her completely and sometimes formally renounce her as a member of
that family. In such a case, whether relocation to a city is unduly harsh will
be a question of fact, depending on the ability of such a lesbian woman to
survive economically away from her family and social networks.’ (para
78(10))
‘If a lesbian woman’s family wishes to pursue and harm her in the place of
internal relocation, their ability to do so will depend on the reach of the family
network, how persistent they are, and how influential. The evidence
indicates that there is normally sufficient state protection for women whose
families seek to harm them in their place of internal relocation.’ (para 78(11))
‘In general, where there is a risk of persecution or serious harm in a lesbian
woman’s home area, for educated, and therefore “middle class” women, an
internal relocation option is available. They are likely to be able to relocate to
one of the major cities in India and are likely to be able to find employment
and support themselves, albeit with difficulty, and to live together openly,
should they choose to do so. In general, such relocation will not be unduly
harsh.’ (paragraph 78(12))
(See Freedom of movement and NGOs and support networks).
2.6.5 Internal relocation will not be an option if it depends on the person
concealing their sexual orientation and / or gender identity in the proposed
new location for fear of persecution. This will not be the case if the person
does so simply in response to social pressures, or for cultural or religious
reasons of their own choosing. Each case must be considered on its facts
with the onus will be on the person to demonstrate why relocating internally
to another part of the country in unreasonable or unduly harsh.
2.6.6 For general information and analysis on internal relocation, see the Country
Policy and Information Note on India: Background information, including
actors of protection, and internal relocation and, in the case of women, the
CPIN on India: women fearing gender based harm/violence.
2.6.7 For further guidance on internal relocation, see the Asylum Instruction on
Assessing Credibility and Refugee Status and, in regard to women, Gender
issues in the asylum claim.
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Page 11 of 352.7 Certification
2.7.1 Where a claim is refused, it must be considered for certification under
section 94 of the Nationality, Immigration and Asylum Act 2002 as India is
listed as a designated state, and the claim is likely to be certifiable as ‘clearly
unfounded’ as, in general, the state is willing and able to provide effective
protection.
2.7.2 For further guidance on certification, see the Appeals Instruction on
Certification of Protection and Human Rights claims under section 94 of the
Nationality, Immigration and Asylum Act 2002 (clearly unfounded claims).
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Page 12 of 35Country information
This part of the COI was updated: 20 September 2018
3. Legal rights
3.1 General
3.1.1 The International Lesbian, Gay, Bisexual, Transgender and Intersex
Association (ILGA) noted in 2016 that there were no national laws
specifically prohibiting discrimination on the basis of sexual orientation or
gender identity1.
3.1.2 The Indian Constitution does not refer to sexual orientation in Articles
defining the rights of citizens. The Constitution provides:
Article 15a: The State shall not discriminate against any citizen on grounds
only of religion, race, caste, sex, place of birth...’
Article 14: ‘The State shall not deny to any person equality before the law or
the equal protection of the laws within the territory of India.’
Article 16.1: ‘There shall be equality of opportunity for all citizens in matters
relating to employment or appointment to any office under the State.’ 2
3.1.3 There is no provision in Indian law for civil partnerships or for the recognition
of same-sex marriages3.
3.1.4 Same-sex couples are generally not permitted to adopt children jointly as a
couple. Surrogacy is legal and the law recognises single male or female
parenthood4.
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3.2 Gay and bisexual men: Section 377 of the Indian Penal Code (IPC)
3.2.1 Section 377 was included in the Indian Penal Code by the colonial
government in the 1860s. It provides as follows:
‘377. Unnatural offences: Whoever voluntarily has carnal intercourse against
the order of nature with any man, woman or animal, shall be punished with
1*[imprisonment for life], or with imprisonment of either description for a term
which may extend to ten years, and shall also be liable to fine. Explanation.-
Penetration is sufficient to constitute the carnal intercourse necessary to the
offence described in this section.’5
3.2.2 The phrase ‘carnal intercourse against the order of nature’ was interpreted to
include sodomy and applied in principle in both gay and heterosexual
relationships6.
1 ILGA, ‘State-sponsored Homophobia, 11th Edition’, (page 153), May 2016, url.
2 Constitution of India, url.
3 ILGA, ‘State-sponsored Homophobia, 11th Edition’, (page 153), May 2016, url.
4 The World Bank, ‘Charting a Programmatic Roadmap’, July 2012, url.
5 Indian Penal Code (Act No.45 of Year 1860), url.
6 The Naz Foundation Case, ‘Section 377’, url.
Page 13 of 353.2.3 On 6 September 2018, India’s Supreme Court [SC] ruled that consensual
sexual acts between adults, conducted in private, was no longer an offence
under Section 377 of the IPC7. The historic ruling effectively scrapped the
colonial law, which deemed sex between consenting gay men, a punishable
offence8. The SC held that ‘non-consensual sexual acts against adults, all
acts of carnal intercou[r]se against minors, and acts of beastiality [sic]’,
would remain criminalised under Section 3779. The Times of India noted that
the ruling ‘…does not automatically get extended to the state of Jammu and
Kashmir, governed by its own Constitution and criminal law – Ranbir Penal
Code (RPC).’10
3.2.4 The Immigration and Refugee Board of Canada (IRB), citing various
sources, noted that section 377 IPC is also relied on by the courts in India to
prosecute cases of child sexual abuse11.
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3.3 Enforcement of Section 377 IPC prior to September 2018 ruling
3.3.1 The Supreme Court of India noted in its judgment of 11 December 2013 that
fewer than 200 people had been prosecuted under Section 377 IPC since it
came into force 150 years ago. A minority of those cases involved
consenting adults12.
3.3.2 According to various reports cited by the Immigration and Refugee Board of
Canada, the threat of being charged under section 377 was sometimes used
by police to harass and discriminate against LGBT people in public spaces13.
3.3.3 The Times of India reported on 29 September 2016 that, according to the
National Crimes Record Bureau, police in various states and Union
Territories registered 1,347 cases and arrested 1,491 people under section
377 during 2015, including 207 minors and 16 women. In 2014, 1,148 cases
were registered. The article noted, ‘Though the figures do not give a [break-
down] of the gender of the victims, it mentions that in 814 cases, the crimes
were committed against children. The remaining crimes were committed
against adults, but the report does not specify whether the acts were
consensual.’14
3.3.4 The organisation Erasing 76 Crimes commented in October 2016, ‘Some
observers believe that the vast majority of arrests under India’s Section 377
have been for sexual assault of minors, especially boys.’ 15
3.3.5 The National Crime Records Bureau (NCRB) recorded the following data:
2015 (Source: Crime in India 2015 Statistics)
7 Supreme Court India, ‘Writ Petition (Criminal) No. 76 of 2016’, 6 September 2018, url.
8 The Times of India, ‘Gay sex is not a crime’, 6 September 2018, url.
9 Supreme Court India, ‘Writ Petition (Criminal) No. 76 of 2016’, 6 September 2018, url.
10 The Times of India, ‘SC decriminalises gay sex’, 8 September 2018, url.
11 IRB, ‘India: Treatment of sexual minorities’, 24 December 2015, url.
12 Supreme Court India, ‘Civil Appeal No.10972 of 2013’, 11 December 2013, url.
13 IRB, ‘India: Treatment of sexual minorities’, 24 December 2015, url.
14 The Times of India: ‘14% of those arrested under section 377’, 29 September 2016, url.
15 Erasing 76 Crimes, ‘Nearly 1,500 arrested last year’, 17 October 2016, url.
Page 14 of 351,347 cases were registered (reported by the police) in 2015 under Section
377 IPC16 (table 1.3); charge-sheets were submitted in 1,006 cases
(tab.4.1); 1,491 persons were arrested (tab.12.1), of whom 177 were
children and 16 were women. Transgender persons were not counted
separately (tab.12.2). Trials were completed in 378 cases, resulting in 175
convictions, 203 were acquitted or discharged (tab.4.5). In 814 of the 1,347
cases registered, the victims were children (tab.6.3) At the end of the year
2015, 199 persons were in custody while their cases were being
investigated; a further 480 were in custody pending trial; a total of 1,841
persons were on bail (tabs.12.3-12.4)17.
2014 (Source: Crime in India 2014 Statistics)
1,148 cases were registered in 2014 under Section 377 IPC (table 1.3); 113
cases for investigation were carried over from 2013 (tab 4.1); charge-sheets
were submitted in 879 cases (tab.4.1); 1,279 persons were arrested in 2014
(tab.12.1), of whom 207 were children and 14 were women. Transgender
persons were not counted separately (tab.12.2). Trials were completed in
233 cases, resulting in 100 convictions, 133 were acquitted or discharged
(tab.4.5). In 765 of the 1,148 cases registered, the victims were children
(tab.6.2)18.
3.3.6 The NCRB, in recording arrests and convictions under section 377, did not
differentiate between consensual or non-consensual sexual relations19.
3.3.7 CPIT has not found evidence in other reports or articles that any persons
have been tried and convicted under section 377 since December 2013 in
cases involving sexual relations between consenting adults.
3.3.8 The Pink News, in February 2015, quoted the chairman of India’s Law
Commission as stating ‘Section 377 is discriminatory in its application,
unreasonable in its intent, deprives a group of its personal autonomy and
violates individual privacy and human dignity ... Consequences of the laws in
our country on gay sex include damage to the psychological well-being of
homosexuals, encouragement of violence and facilitation of police
harassment and discrimination against the LGBT community.’20
3.3.9 Asia Pacific Director of the International Committee of Jurists (ICJ) said,
regarding the September 2018 Supreme Court judgement that the
criminalisation of consensual same-sex relationships under Section 377
violated the Indian Constitution, ‘“Even a landmark decision by the Indian
Supreme Court cannot alone end the discrimination against people based on
their sexual orientation or gender identity. It is time for the Indian Parliament
to conduct wide-ranging review of existing legal framework, repeal
discriminatory laws, and address other gaps in the law that prevent LGBT
persons from fully exercising their rights”.’21
16 Listed as ‘Unnatural offences’ in the tables
17 NCRB, ‘Crime in India 2015’, n.d., url.
18 NCRB ‘Crime in India 2014’, n.d., url.
19 NCRB ‘Crime in India 2014’, n.d., url.
20 Pink News, ‘Judge: India's Anti-Gay Law is “Discriminatory”’, 17 February 2015, url.
21 ICJ, ‘India: Supreme Court decision’, 6 September 2018, url.
Page 15 of 35See also Police conduct
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3.4 Lesbian and bisexual women
3.4.1 There are no laws in India criminalising lesbian sexual activity22.
3.4.2 Indian law does not recognise same-sex marriages or civil partnerships23.
3.4.3 In vitro fertilization (IVF) is carried out in hospitals and private clinics in
several centres24 and is available to single women who wish to start a
family25.
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3.5 Transgender persons
3.5.1 There are a number of hospitals in India which have facilities for sex
reassignment surgery (SRS). The legality of SRS is not yet clear, although
there have been no documented cases of doctors being prosecuted for
carrying out such surgery. (Section 320 of the Penal Code criminalises the
emasculation of a person and falls under the definition of grievous hurt;
however, Section 88 provides an exception, where an action is undertaken in
good faith and the subject gives consent to suffer that harm)26.
3.5.2 Official guidance enables the issue of national identity documents (‘Aadhaar’
ID cards), passports and voter registration where transgender people can
show their gender as ‘transgender’ or ‘other’ if they wish to; female to male
reassigned persons may record their gender as male; male to female can
record their gender as female27.
3.5.3 In particular, the Supreme Court of India, in a judgment of 15 April 2014,
directed that ‘State-issued identity papers which indicate a person’s
gender/sex – including birth certificates, passports, electoral records and
other documents – reflect the person’s profound self-defined gender identity.’
The Court held:
‘Persons of diverse sexual orientations and gender identities shall enjoy
legal capacity in all aspects of life. Each person’s self-defined sexual
orientation and gender identity is integral to their personality and is one of
the most basic aspects of self-determination, dignity and freedom. No one
shall be forced to undergo medical procedures, including sex reassignment
surgery, sterilisation or hormonal therapy, as a requirement for legal
recognition of their gender identity. No status, such as marriage or
parenthood, may be invoked as such to prevent the legal recognition of a
person’s gender identity. No one shall be subjected to pressure to conceal,
suppress or deny their sexual orientation or gender identity.’28
22 ILGA, ‘State-sponsored Homophobia, 11th Edition’, (page 153), May 2016, url.
23 ILGA, ‘State-sponsored Homophobia, 11th Edition’, (page 153), May 2016, url.
24 Indraprastha Apollo Hospitals, ‘Gynecology & Obstetrics; Treatments & Services’, n.d., url.
25 Delhi IVF Fertility Research Centre: ‘What is single parenting’, 25 July 2018, url.
26 NUJS Law Review ‘Crystallising Queer Politics’, (page 462), 20019, url.
27 Indian Express,’ An identity at last as 71 transgenders get Aadhaar cards’, 9 March 2014, url.
28 Supreme Court India, ‘Writ Petition (Civil) no 400 of 2012’, (paragraph 22), 15 April 2014, url.
Page 16 of 353.5.4 The Supreme Court issued the following directions to the central
Government of India (the ‘Centre’) and to all state governments:
‘(a) Hijras, Eunuchs, apart from binary gender, are to be treated as [a]
“third gender” for the purpose of safeguarding their rights under Part III of our
Constitution and the laws made by the Parliament and the State Legislature.
(b) Transgender persons’ right to decide their self-identified gender is also
upheld and the Centre and State Governments are directed to grant legal
recognition of their gender identity such as male, female or as third gender.
(c) We direct the Centre and the State Governments to take steps to treat
them as socially and educationally backward classes of citizens and extend
all kinds of reservation in cases of admission in educational institutions and
for public appointments.
(d) Centre and State Governments are directed to operate separate HIV
Sero-survellance Centres since Hijras/ Transgenders face several sexual
health issues.
(e) Centre and State Governments should seriously address the problems
being faced by Hijras/Transgenders such as fear, shame, gender dysphoria,
social pressure, depression, suicidal tendencies, social stigma, etc. and any
insistence for SRS for declaring one’s gender is immoral and illegal.
(f) Centre and State Governments should take proper measures to
provide medical care to [the Transgender community] in the hospitals and
also provide them separate public toilets and other facilities.
(g) Centre and State Governments should also take steps for framing
various social welfare schemes for their betterment.
(h) Centre and State Governments should take steps to create public
awareness so that [the Transgender community] will feel that they are also
part and parcel of the social life and be not treated as untouchables.
(i) Centre and the State Governments should also take measures to
regain their respect and place in the society which once they enjoyed in our
cultural and social life.’29
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This part of the COI was updated: 20 September 2018
4. State treatment and attitudes
4.1 Responses to court judgments on Section 377 IPC
4.1.1 BBC News reported on the reaction by political parties to the Supreme Court
ruling of September 2018 on Section 377. It stated:
‘The governing BJP party has said it would leave the decision to the
Supreme Court. However, one of its members said he was disappointed with
the verdict. Subramanian Swamy, known for making provocative comments,
said: “It could give rise to an increase in the number of HIV cases.”
Meanwhile, the main opposition Congress party has welcomed the ruling,
29 Supreme Court India, ‘Writ Petition (Civil) no 400 of 2012’, (paragraph 129), 15 April 2014, url.
Page 17 of 35saying they “hope this is the beginning of a more equal and inclusive
society”.’30
4.1.2 In respect of cases pending under Section 377, the Supreme Court
judgement held ‘The declaration of the aforesaid reading down of Section
377 shall not, however, lead to the reopening of any concluded prosecutions,
but can certainly be relied upon in all pending matters whether they are at
the trial, appellate, or revisional stages.’31
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4.2 Gay pride events
4.2.1 Gay Pride parades have taken place in New Delhi, Bangalore and Chennai
since 2008, and in Pune since 2011. The first pride parade was held
informally in Kolkata in 199732. The Delhi LGBT pride parade in November
2015 saw participation by several hundred people belonging to the LGBT
community as well as people outside of it, according to various reports33.
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4.3 Positive steps toward transgender/hijra/aravani groups
4.3.1 The government of the state of Tamil Nadu established an Aravani (Hijra)
Welfare Board in 2008 and has taken several initiatives to improve the lives
of transgender people, including admission quotas in colleges, ration cards
and free surgery in state hospitals34.
4.3.2 The US Department of State (USSD) 2015 Human Rights Report noted:
‘In March [2015], Tamil Nadu Uniformed Services Recruitment Board
rejected K. Prathika Yashini’s application because her name did not match
her [masculine] birth name, “K. Pradeep Kumar.” Yashini had previously
officially changed her name with all government agencies after undergoing
gender reassignment surgery. Yashini successfully sued in Madras High
Court for permission to take a written examination for the police force on
May 23 and partook in field trials on August 5. Yashini became the country’s
first transgender police officer in November [2015]35.
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4.4 Police conduct
4.4.1 There is no national police force in India. Most of the 36 states and ‘union
territories’ have their own independent police forces. There are about 14,000
police stations throughout the country. Police conduct varies from one state
or region to another (for further details, see the country policy and
information on India: Background, including actors of protection and internal
relocation).
30 BBC News, ‘India court legalises gay sex in landmark ruling’, 6 September 2018, url.
31 Supreme Court India, ‘Writ Petition (Criminal) No. 76 of 2016’, 6 September 2018, url.
32 ILGA, ‘Violence against LGBT groups still prevails in India’, 30 November 2013, url.
33 IRB, ‘India: Treatment of sexual minorities’, 24 December 2015, url.
34 EPW, ‘Editorial: Gender Rights’, 15 July 2008, url.
35 USSD, ‘Country Report on Human Rights Practices for 2015’, (section 6), 13 April 2016, url.
Page 18 of 354.4.2 As noted in the US State Department 2015 Human Rights Report, ‘The
effectiveness of law enforcement and security forces varied widely
throughout the country.’36
4.4.3 The US State Department reported that, in 2015, ‘Some police committed
crimes against LGBTI persons and used the threat of arrest to coerce victims
not to report the incidents ... There were cases of officers at all levels acting
with impunity, but there were also cases of security officials held accountable
for illegal actions ... Several states, with the aid of NGOs, offered education
and sensitivity training to police.’37
4.4.4 The Times of India reported on 29 September 2016 that police in various
states and Union Territories had arrested 1,491 people under section 377
during 2015, including 207 minors and 16 women. In 814 of these cases, the
recorded offences had been committed against children38.
See Enforcement of Section 377 IPC prior to September 2018 ruling).
4.4.5 Human Rights Watch stated in their World Report 2016, published 27
January 2016, ‘LGBT individuals continue to face harassment, extortion,
intimidation, and abuse, including by the police.’39
4.4.6 According to a study conducted in 17 Indian states by researchers from 3
NGOs, and reported in 2016 in the International Journal of Health Sciences
and Research (IJHSR):
‘Police officials and other law enforcing authorities who came in contact with
TW [trans women] on a regular basis such as Railway Protection Force
(RPF) did not support TW community in majority of the states. As expressed
by the community, they were the perpetrators of physical violence on a
regular basis. The community engaged in commercial sexual activities and
other means of income generation, which made them come in contact with
the law enforcing authorities. Many community members shared their
experiences during the discussions that they had faced discrimination,
physical and sexual abuse and seclusion from law enforcing authorities in [a]
majority of the study states.
‘Whereas, there were some experiences of support, where the police
officials had protected the rights of the community and prevented
exploitation. The support was mainly extended in the states where the TW
community was in adequate number to represent their presence in the
mainstream society such as southern states or western states of India.’40
4.4.7 A report of July 2012, prepared on behalf of the World Bank by Amaltas
Consulting (Delhi) and Humsafar Trust, a Mumbai-based LGBT advocacy
NGO noted:
36 USSD, ‘Country Report on Human Rights Practices for 2015’, (section 1d), 13 April 2016, url.
37 USSD, ‘Country Report on Human Rights Practices for 2015’, (section 6), 13 April 2016, url.
38 The Times of India: ‘14% of those arrested under section 377’, 29 September 2016, url.
39 Human Rights Watch, ‘World Report 2016 – India’, 27 January 2016, url.
40 IJHSR, ‘Social Support System of Hijras’, (page 22), 4 April 2016, url.
Page 19 of 35‘Countless episodes of gay men entrapped in public spaces and parks by
police and threatened with arrest and prosecution under Section 377 have
been reported.
‘It is common for police to misuse their privilege with impunity against
alternate sexuality since intolerance is built into the social structure. Moral
policing replaces the policing that is protective of human rights, laid down by
the law of the land.
‘Community activities such as simple get-togethers are met with suspicion
and complaints of public nuisance. There are various incidents where gay
parties have been raided by the police on the pretext of drugs and sex.’41
4.4.8 The Canadian IRB report of 24 December 2015 stated:
‘ABC [Australian Broadcasting Corporation] quotes an Indian lawyer as
stating that “although prosecutions for sex between consenting adults are
rare, as long as the law remains, it will be used to intimidate.”
‘According to an LGBT community activist interviewed by Dna India, there
have been “many reports” of sexual violence by police (24 Nov. 2014).’42
4.4.9 Dr Akshay Khanna stated in his role as an expert witness in the Country
Guidance case of MD (India) in October 2013:
‘Apart from the Queer pride marches...there is no evidence of the police
positively supporting LGBT people, especially working class LGBT people
facing adversity. There is an obstinate refusal to recognise violence as being
homophobic, and even where this is obvious, the police tend to obfuscate
this fact and treat these as simply violent crimes. There is also a tendency to
refuse investigation...and instead there is a tendency to ridicule and
taunt...’43
4.4.10 A 2012 report by the Special Rapporteur on the Situation of Human Rights
Defenders noted that ‘Defenders engaged in promoting and defending the
rights of lesbian, gay, bisexual and transgender (LGBT) persons face
discrimination, stigmatization and threats reportedly from many parts of
society, especially in rural areas. On some occasions, the police attacked
LGBT activists for raising issues pertaining to the situation of the LGBT
community44.
4.4.11 The Supreme Court judgement of September 2018 requested that ‘… all
government officials, including and in particular police officials, and other
officers of the Union of India and the States, be given periodic sensitization
and awareness training of the plight of such persons in the light of the
observations contained in this judgment.’45
41 The World Bank, ‘Charting a Programmatic Roadmap’, July 2012, url.
42 IRB, ‘India: Treatment of sexual minorities’, 24 December 2015, url.
43 Upper Tribunal, ‘MD (same-sex oriented males: risk)’, (paragraph 170), 12 February 2014, url.
44 UN HRC, ‘Report of the Special Rapporteur’, (paragraphs 55-57), 6 February 2012, url.
45 Supreme Court India, ‘Writ Petition (Criminal) No. 76 of 2016’, (page 96), 6 September 2018, url.
Page 20 of 354.4.12 The LGBT rights group, Naz Foundation, said that copies of the Supreme
Court judgement would be given to every police station46.
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4.5 Remedies for police misconduct
4.5.1 Investigations into allegations of serious police misconduct or abuse may be
initiated through various means:
• A complaint can be made to the officer in charge of a police station.
Section 154(3) of the Code of Criminal Procedure provides that, if that
officer fails to initiate a formal investigation by registering a First
Information Report, or if a proper investigation is not carried out, the
complainant can apply in writing to the Superintendent of Police, who
must then take responsibility for investigating the case47 48.
• If the state police force fails to properly investigate the case, or if the
aggrieved individual does not wish to lodge a complaint at a police
station, he/she is entitled to take their case to a Magistrate who, under
sections 156 and 200 of the Code of Criminal Procedure, is empowered
to order a criminal investigation49.
• A victim of police misconduct can also make a report to the National
Human Rights Commission (NHRC) According to the Ministry of Home
Affairs’ 2012-13 Annual Report, the NHRC registered for consideration
80,764 cases of abuse by security officials nationwide between April and
December 2012. The Commission closed 66,346 cases, some of which
had been carried forward from previous years. In 275 cases, the
Commission recommended payment of interim relief amounting to 86.7
million rupees (US $1.42 million)50.
4.5.2 Freedom House reported in May 2014 that ‘While [the NHRC] monitors
abuses, initiates investigations, makes independent assessments, and
conducts training sessions for the police and others, its recommendations
are often not implemented and it has few enforcement powers.’51 According
to the US State Department 2015 Human Rights Report, some human rights
NGOs have claimed that ‘the NHRC did not register all complaints,
dismissed cases arbitrarily, did not investigate cases thoroughly, re-routed
complaints back to the alleged violator, and did not adequately protect
complainants.’ In addition to the NHRC, 23 states and union territories, as of
2015, had Human Rights Commissions with remits in those particular states.
According to the US State Department, ‘Some human rights groups alleged
that local politics influenced state committees, which were less likely to offer
fair judgments than the NHRC.’52
46 Independent, ‘Section 377’, 6 September 2018, url.
47 Code of Criminal Procedure Act, 1973, url.
48 Legal Services India, ‘The Power of the Magistrate’, June 2012, url.
49 Legal Services India, ‘The Power of the Magistrate’, June 2012, url.
50 USSD, ‘Country Reports on Human Rights Practices for 2013’, (section 1d),27 February 2014, url.
51 Freedom House, ‘Freedom in the World 2014’, (F. Rule of Law), 19 May 2014, url.
52 USSD, ‘Country Report on Human Rights Practices for 2015’, (section 5), 13 April 2016, url.
Page 21 of 354.5.3 In September 2006, the Supreme Court instructed both the central and state
governments to comply with certain directives which were regarded as
necessary for a police reform process. The Court stated that these directives
had two main objectives: functional autonomy for the police and enhanced
police accountability. One of the directives was that a Police Complaints
Authority (PCA) was to be established in each state of India to inquire into
public complaints against police officers in certain cases of serious
misconduct.53 However, as of December 2012, only 14 states had enacted
legislation to establish Police Complaints Authorities and PCA’s were
actually operational in six states and four union territories 54.
4.5.4 The New India Express reported in September 2016 that, according to
National Crime Records Bureau data, 3080 criminal cases were registered
against police officers in the state of Kerala in 2015. The newspaper quoted
the Chairman of the State Human Rights Commission as saying, ‘The
common complaints against Kerala Police are delay[s] in registering the
case, keeping [the] accused in custody for more than the prescribed time
and custodial torture. Now, people are aware of their rights and do not
hesitate to adopt legal measures in instances of violations of their rights.’ In
the state of Maharashtra, 536 cases against police officers were registered
in 201555.
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This part of the COI was updated: 20 September 2018
5. Societal treatment and attitudes
5.1 Gay men and lesbians
5.1.1 India is a vast, diverse, multicultural country. Communities vary considerably
not only in size, but also in their religious, ethnic, economic and political
composition – and in the extent of their adherence to traditional social and
family values56.
For the general position of women in society see the country policy and
information note on India: women fearing gender based harm/violence.
5.1.2 In 2016 the International Lesbian, Gay, Bisexual, Transgender and Intersex
Association (ILGA) published the partial results of the ILGA-RIWI 2016
Global Attitudes Survey on LGBTI People, in partnership with Logo, a US-
based LGBT media organisation. The survey was carried out in 65 countries
to show whether or not a certain piece of legislation enjoyed the support of
the public in that country. Results for India were tabulated as follows:
Strongly Somewhat Neither Somewhat Strongly
agree agree disagree disagree
“Being gay, lesbian 21% 10% 20% 11% 39%
53 IHS, ‘Jane's Sentinel Security Assessment’, subscription only.
54 CHRI, ‘Police Complaints Authorities in India: A Rapid Study’, December 2012, url.
55 New India Express, ‘3080 criminal cases against Kerala cops’, 1 September 2016, url.
56 The Top Tens, ‘Most Multicultural Countries in the World’, n.d., url.
Page 22 of 35bisexual, trans, or
intersex should be a
crime?”
“Same-sex desire is a
28% 18% 25% 6% 24%
Western phenomenon”
No concerns Somewhat Very
uncomfortable uncomfortable
“How would you feel if
your neighbour is 62% 17% 22%
gay or lesbian?”
57
5.1.3 The World Bank report of July 2012 observed:
‘Often the stigmatizing attitudes and discriminatory actions towards
homosexuals or persons with alternative sexuality are hostile, and justified
on the pretext of them being anti-religious, anti-social or just anti-tradition.
‘Sexuality is sometimes viewed even in liberal and radical circles as a
frivolous, bourgeois issue. In such a context, homosexuality is seen implicitly
as something deviant and unnatural that is at best defended as an individual
freedom but not a matter of priority for the human rights movement.
Generally, issues of poverty, class and caste oppression are seen as more
important than that of gender and sexuality – especially gender and sexual
minorities – and the links and interdependencies are often not recognized.
‘Violence is an everyday reality faced by those of the LGBT communities.
The issues of violence faced by the LGBT community can be from within the
community and that faced from outside the community.
‘Public spaces are fraught with danger for the average LGBT person.
Commonplace interactions with those of the mainstream result in
stigmatization, derision and often, violence. The community has no safe
spaces.
‘Even in the southern states where the LGBT mobilization has been quite
strong, there have been instances where people from the LGBT
communities have not been allowed to enter hotels, restaurants or clubs.’58
5.1.4 The Naz Foundation (India) Trust, a leading LGBT advocacy organisation
and the principal respondent in the Indian Supreme Court case regarding
Article 377 IPC, advised the British High Commission (Delhi) in September
2013: ‘...we do see a lot more openness in relationships especially in urban
areas. Many couples are living together...’59
5.1.5 A founder of the support group, The Sangini Trust, told Diva magazine in
2009 that a major problem facing lesbians in India was societal and family
pressure to marry. The magazine quoted an editorial from the Indian
women’s magazine Gladrags: ‘From the time a little girl turns into a young
57 ILGA, ‘State-sponsored Homophobia, 11th Edition’, (pages 99-100), May 2016, url.
58 The World Bank, ‘Charting a Programmatic Roadmap’, July 2012, url.
59 BHC letter, 22 September 2013, Annex A.
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